“This court hereby finds the Arkansas constitutional and legislative ban on same-sex marriage through Act 144 of 1997 and Amendment 83 is unconstitutional,” Judge Christopher Piazza ruled in a 13-page decision released May 9.
While Act 144 states that marriage “shall be only between a man and a woman,” and “marriage between persons of the same sex is void,” Amendment 83, which a majority of voters approved in the November 2004 election, reinforces that belief.
Piazza ruled that the Arkansas marriage laws violate equal protection rights under the 14th Amendment of the US Constitution, adding that “they do not advance any conceivable legitimate state interest necessary to support even a rational basis review.”
Citing the US Supreme Court’s decision in Loving v Virginia, which struck down a nationwide ban on interracial marriage in 1967, Piazza wrote, “It has been over forty years since Mildred Loving was given the right to marry the person of her choice. The hatred and fears have long since vanished and she and her husband lived full lives together; so it will be for the same-sex couples. It is time to let that beacon of freedom shine brighter on all our brothers and sisters.”
The case was brought by 12 same-sex couples who wish to marry in Arkansas and eight same-sex couples who got married in states that allow gay marriage and want the state recognition of their status.
“Although marriage is not expressly identified as a fundamental right in the Constitution,” Piazza writes, “the United States Supreme Court has repeatedly recognized it as such. It has also consistently applied heightened scrutiny to laws that discriminate against groups considered to be a suspect or quasi-suspect classification.”
Piazza did not stay his ruling, effectively signalling that gay couples can apply for marriage licences.
According to The Washington Blade, the state’s attorney-general, Dustin McDaniel, supports gay marriage but will reportedly appeal the ruling. A spokesperson for McDaniel is quoted as saying that Piazza will be asked to stay the ruling “so as not to create confusion or uncertainty about the law while the Supreme Court considers the matter.”
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